APPEAL from judgments of the Superior Court of Los Angeles County, David Wesley, Judge. Affirmed. (Los Angeles County Super. Ct. No. BA273621).
The opinion of the court was delivered by: Turner, P.J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendants, Jose Albert Reyes, Jr. and Miriam Ahamad, appeal from their convictions. Mr. Reyes was convicted of first degree murder (Pen. Code,*fn2 § 187, subd. (a)). As to Mr. Reyes, the jury found that a principal personally discharged a firearm which caused death. (§ 12022.53, subds. (b), (c), (d), (e)(1).) Ms. Ahamad was convicted of being an accessory after the fact. (§ 32.) As to both defendants, the jury also found their offenses were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(A).) Mr. Reyes argues the trial court improperly denied his severance motion and admitted testimony from two Los Angeles Police Department experienced gang investigators. Mr. Reyes further argues there was insufficient evidence to support his conviction. Ms. Ahamad argues the trial court improperly found she did not have standing to move to suppress wiretap evidence and there was insufficient evidence the murder was committed for the benefit of a criminal street gang. We affirm.
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On May 31, 2004, Jose Martinez-Martinez, Marco Antonio Larrainzar, and Ray Chester met. They met in order to celebrate Mr. Chester's birthday. The three men went to a restaurant on Sixth Street in downtown Los Angeles, where they drank beer for approximately one hour. While at the restaurant, three men, who appeared to be Salvadorian or Guatemalan, told Mr. Martinez they hated Mexicans. Mr. Martinez and his companions left the restaurant. Thereafter, they went to El Pulgarcito restaurant on Vermont Avenue. The three men ordered bottled beer. Mr. Martinez left the restaurant briefly to watch a basketball game in an adjacent establishment. Later, Mr. Martinez rejoined his two companions at the same table.
Approximately five Latin men were seated at another table in the restaurant. Mr. Reyes looked angrily at Mr. Chester more than seven times.
At some point, Mr. Larrainzar got up to play music and Mr. Martinez went to the restroom. A man in the restroom spoke to Mr. Martinez in Spanish. While in the restroom, Mr. Martinez was asked where he was from. Mr. Martinez responded that he was from Mexico. The individual said that he was from Guatemala. Mr. Martinez walked back to the restaurant. Mr. Martinez was confronted by another man in the hallway. The man asked Mr. Martinez: "Where are you from? If you're not going to tell me, I'm going to kill you." Mr. Martinez responded: "No, just go away. We're just celebrating my friend's birthday. What's going on?" The man said: "No, I'm not - - I'm not joking. Just tell me where you're from or I'm going to kill you."
Mr. Chester became concerned when Mr. Martinez did not immediately return from the restroom. Mr. Chester walked up the steps to the hallway. Mr. Chester approached Mr. Martinez. Mr. Chester asked the man: "Hey, what happened? What's wrong with you? We're just celebrating my birthday." The man asked Mr. Chester, "What barrio, what hood are you from?" Mr. Chester responded, "From none." The man then punched Mr. Chester in the face. Mr. Chester fell down a nearby flight of stairs.
Mr. Martinez was struck on the left side of the face by another person. Mr. Martinez was assaulted while being held from behind. Mr. Martinez feared that he was going to be killed. Both assailants were Latino.
Mr. Martinez and Mr. Chester then heard a gunshot. Mr. Chester then felt people jump over his body as several individuals ran out of the restaurant. Mr. Chester saw Mr. Martinez come from the kitchen. Mr. Chester and Mr. Martinez then found Mr. Larrainzar on the floor. Mr. Larrainzar was bleeding from the head. Mr. Martinez and Mr. Chester went outside to attempt to locate their assailants. However, it was dark and they saw no one. Thereafter, Mr. Chester and Mr. Martinez left the restaurant. Mr. Larrainzar later died as a result of a close contact gunshot wound to his head.
Nelly Weld was working as a waitress at the El Pulgarcito restaurant on May 31, 2004. At approximately 8 p.m., three Latino men entered the restaurant and sat at a middle table. The men ordered beer. Ten or fifteen minutes later, another four Latino men walked into the restaurant. The men sat at two tables near the window. Ms. Weld had never seen any of the men in either group before. They also ordered beer. Ms. Weld noticed that one of the men seated at the middle table had a spider web tattoo on his elbow and a bald head. Ms. Weld associated these features with gangs. Ms. Weld was familiar with that fact there was a local gang in the area of the restaurant. Ms. Weld was the only waitress in the restaurant and an individual identified only as "Maritza" was the cook on May 31, 2004.
At some point, Ms. Weld went to the storage room to get beer for the cooler. While inside the storage room, Ms. Weld heard a gunshot. When Ms. Weld heard a commotion from the area leading to the restroom, she entered the kitchen. Ms. Weld and the cook looked through the small window of the kitchen door. Ms. Weld then looked into the restaurant. Ms. Weld saw people leaving the restaurant. Ms. Weld saw the backs of the individuals who had been seated near the window as they went out the front door. Ms. Weld saw a wounded man inside the restaurant. Ms. Weld called the owner, Zoila Valdez, who was at another restaurant. At trial, Ms. Weld did not recall telling Ms. Valdez that two gang members, who were known by certain gang nicknames, shot someone in the restaurant. Ms. Weld did not recall telling Ms. Valdez that these men were the same gang members that had been "hanging out" at the restaurant for two weeks and causing problems. After speaking with Ms. Valdez, Ms. Weld then called the police. Ms. Weld locked the front door of the restaurant. Before the police arrived, Ms. Weld removed the beer bottles from the tables and placed them in the trash can.
Detective Mario Mota met with Ms. Valdez, the restaurant owner, at approximately 12:30 a.m. on June 1, 2004. Ms. Valdez had telephoned the police about the shooting. Ms. Valdez had received a telephone call from Ms. Weld about the shooting. Ms. Weld said gang members had shot someone. Only Ms. Weld and the cook were present at the time of the shooting. Ms. Weld explained to Ms. Valdez the victim and a friend had come to the restaurant and began drinking and eating. This was the first time Ms. Weld had seen these individuals. Thereafter, two gang members had entered the restaurant and waited for the victim to go to the restroom. Ms. Weld then heard a gunshot. Ms. Weld also told Ms. Valdez the same gang members had gone to the restaurant for the past two weeks. Ms. Weld stated that Mr. Reyes and Mr. Aguilar were the individuals who had waited for the victim near the restroom. However, Ms. Weld used Mr. Reyes' and Mr. Aguilar's gang monikers in describing them to Ms. Valdez. Ms. Valdez knew both individuals and described them to Detective Mota. Ms. Valdez described Mr. Reyes utilizing three possible gang nicknames and said he lived directly across the street from the restaurant on Alvarado Boulevard. Ms. Valdez was very nervous, trembling, and reluctant to give information to Detective Mota. Ms. Valdez explained that she did not want to get involved because it was very dangerous to give out such information.
On a later date, Detective Mota interviewed Ms. Valdez again. Their discussion was tape recorded. Ms. Valdez indicated that she did not want to be involved in the trial because she had been intimidated. However, she wrote down on a piece of paper two names. Mr. Reyes and Mr. Aguilar were known by the aliases supplied by Ms. Valdez. Ms. Valdez passed the piece of paper to Detective Mota on the counter and then took it back and crumpled it. At first, Ms. Valdez refused to look at photographic lineups containing photographs of the suspects. However, when Detective Mota placed them on the counter, she pointed at Mr. Reyes' photo. Ms. Valdez then went to the kitchen where she was seen shaking, crying, and wiping tears from her eyes. Detective Mota encouraged Ms. Valdez to look at the photographic lineup containing Mr. Aguilar's picture. However, Ms. Valdez ran into the bathroom and locked the door.
When Detective Mota had interviewed Ms. Weld at the scene, she indicated the victims looked like "normal guys." However, she identified the other three individuals as those involved in the shooting. Ms. Weld stated that they were frequent customers or at least that she had seen them before.
Los Angeles Police Department Detective Jeff Breuer arrived at the homicide scene at approximately 11:45 p.m. Detective Breuer saw a Honda Accord and a 2004 Chevrolet Tahoe truck parked on the street and two Corona beer bottles on the sidewalk near the restaurant entrance. Once inside, Detective Breuer saw all the tables but one had apparently been cleared. One table was broken. Detective Breuer understood that the restaurant had been open when the shooting occurred and numerous customers had been inside. Inside a bucket, Detective Breuer found 14 Corona beer bottles, a few of which were full. Detective Breuer believed that someone had started to clean up the restaurant after the shooting. The kitchen was also clean. One expended bullet casing was found in the restaurant. At approximately 3 a.m., Detective Breuer learned that Ms. Ahamad, who was accompanied by two children, had requested access to a Chevrolet Tahoe. Department of Motor Vehicles records showed the Chevrolet Tahoe was registered to Mr. Aguilar on Normandie Avenue, which is approximately two miles from the El Pulgarcito restaurant.
At approximately 11 a.m. on June 1, 2004, Drug Enforcement Administration Special Agent Scott Wight contacted Detective Breuer. Agent Wight had obtained a federal court order to intercept and monitor Mr. Aguilar's mobile telephone. In the early morning hours of June 1, 2004, the authorities intercepted incoming and outgoing conversations on Mr. Aguilar's mobile phone which discussed a Los Angeles homicide. The substance of the intercepted conversations involved the restaurant shooting. The authorities continued to monitor Mr. Aguilar's mobile phone. Agent Wight provided information to Detective Breuer regarding the user of the phone. Agent Wight also provided information as to who Mr. Aguilar spoke to and the content of their conversations. The intercepted conversations were recorded on a compact disk, preserved, and transcribed for future use. A stipulation was read to the jurors that limited the application of the recording to Ms. Ahamad. A redacted copy of the recorded conversations was played at trial. A redacted transcript was provided for the jurors' use.
When Mr. Aguilar spoke with Ms. Ahamad, he mentioned that he left an empty cardboard six-pack in the restaurant. An empty Corona beer six-pack was found in the restaurant by Detective Breuer. Nineteen monitored calls between Mr. Aguilar and Ms. Ahamad were made between 9:41 a.m. and 3:38 p.m. Ms. Ahamad and Mr. Aguilar discussed: the shooting at El Pulgarcito; the victim's death; witnesses; possible identifications; and the fact that Ms. Ahamad was able to drive away with the Chevrolet Tahoe. Ms. Ahamad discussed arrangements for Mr. Aguilar to get false identification and $15,000. In addition, Ms. Ahamad admitted having someone speak to Ms. Weld. Ms. Ahamad was able to find out what Ms. Weld told the police. Ms. Ahamad later told Mr. Aguilar about a discussion with Ms. Weld. Ms. Weld indicated that she had not revealed the identification of anyone to the police and would not do so in the future. Ms. Ahamad informed Mr. Aguilar that Ms. Weld was shown a photo album and took empty beer bottles at the murder scene had been thrown in the trash.
Ms. Ahamad made arrangements to meet Mr. Aguilar at a Walgreen's drug store parking lot at Sixth Street and Vermont Avenue to give him some clothes. Ms. Ahamad told Mr. Aguilar: "But I'm going to tell you something. Since it was a gang thing they're going to start looking for cholos and you know that Blackie and all those guys are snitches, Raul. All they have to do is say your nickname and everything goes to shit."
The police watched an apartment building on Westlake Avenue where Ms. Ahamad resided. Agent Wight had given information to the police officers regarding that address. The police knew that Ms. Ahamad and Mr. Aguilar lived together. The police also watched a residence on South Alvarado, where Mr. Reyes's wife, Yatsmin Aguilar Reyes, resided. Ms. Reyes was Mr. Aguilar's sister. At approximately 12:45 p.m. on June 1, 2004, Officer Lance Jurado observed Ms. Ahamad get out of a silver Honda registered to Ms. Aguilar and Mr. Reyes. At approximately 3 p.m. Officer Jurado saw Ms. Ahamad walk out of the apartment building, enter a silver Honda, and drive away.
Immediately thereafter, the silver Honda registered to Ms. Aguilar and Mr. Reyes appeared behind the first car and followed them. Yatsmin Aguilar was driving the second car.
Lieutenant Peter Zarcone followed the two silver Hondas in the direction of Sixth Street and Vermont Avenue. Lieutenant Zarcone had learned that this neighborhood was to be a meeting point with Mr. Aguilar. Lieutenant Zarcone drove a different route to the area across from the drug store parking lot at that intersection. Detective Breuer was notified at approximately 3:30 p.m. on June 1, 2004, that the location of Sixth Street and Vermont Avenue was to be monitored. Lieutenant Zarcone saw Mr. Aguilar drive into the parking lot in a black Nissan. Mr. Aguilar stopped his car in a parking space. One of the Hondas parked adjacent to Mr. Aguilar. The occupant of the Honda spoke briefly with Mr. Aguilar. The three cars then drove out of the parking lot. Mr. Aguilar drove out of the parking lot and was arrested shortly thereafter.
At approximately 6:20 p.m. on June 1, 2004, Ms. Ahamad telephoned Detective Mota. Ms. Ahamad asked Detective Mota if she could bring her son to see Mr. Aguilar for the last time. Mr. Aguilar was Ms. Ahamad's son's father. When asked why she would assume that they would not see Mr. Aguilar again, Ms. Ahamad responded that she just "knows those things." Detective Mota told Ms. Ahamad that Mr. Aguilar would soon be released. Mr. Aguilar was released at approximately an hour later. Mr. Aguilar's mobile telephone was returned to him. Police officers hoped to get more information from conversation on the monitored phone.
On June 7, 2004, Mr. Martinez met with Detective Mota. Mr. Martinez gave a description of the three men who confronted him in the restaurant bathroom and hallway. Mr. Martinez was shown a photographic lineup by Detective Mota. Mr. Martinez selected Mr. Aguilar as looking like the individual in the bathroom. Mr. Martinez was shown another photographic lineup some time later. Mr. Martinez identified Mr. Reyes as the second individual. Mr. Martinez also identified Mr. Reyes at trial. Mr. Martinez was 90 percent certain of the identification of Mr. Reyes.
Mr. Chester was also interviewed by Detective Mota. Mr. Chester was shown a photographic lineup. As noted, Mr. Chester was asked where he was from and was punched. Mr. Chester selected Mr. Aguilar from the photographic lineup. Mr. Chester was 90 percent certain about his identification. Mr. Chester met with Detective Mota on June 10, 2004 and was shown another photographic lineup. Mr. Chester identified Mr. Reyes as one of the assailants. Detective Mota described Mr. Chester's comments while reviewing the photographic lineup, "He basically told me that number 4 . . . he definitely recalled seeing him inside the restaurant, seated to his right across from him . . . staring at him and giving him dirty looks while he was in that restaurant." Mr. Reyes' picture was in position No. 4 in the photographic lineup.
Roy Sandt was homeless and often lived in his car behind the El Pulgarcito restaurant in 2004. Mr. Sandt often emptied the trash for the restaurant between 8:30 and 10 p.m. In return, the restaurant owner, Ms. Valdez, would save bottles and cans for him to recycle. On May 31, 2004, Mr. Sandt saw the cook at the back door of the restaurant. She was very distraught and on the verge of crying. Mr. Sandt stepped inside, where he saw Ms. Weld in the dining room on the other side of the kitchen pass through window. Ms. Weld looked "like she was freaking out" in Mr. Standt's words. Mr. Sandt decided to leave.
On July 13, 2004, Mr. Sandt spoke to Detective Julian Pere about the incident. Detective Pere wrote down the information provided by Mr. Sandt. Detective Pere had Mr. Sandt read and sign the statement. Mr. Sandt identified Mr. Aguilar and Mr. Reyes utilizing their gang monikers. Mr. Sandt described Mr. Aguilar as a white man over six feet tall with dark hair and a stocky build and goatee. Mr. Sandt said Mr. Aguilar drove a white sport utility truck which frequented the area of Seventh and Alvarado Streets. At trial, Mr. Sandt recalled identifying Mr. Aguilar to Detective Pere. However, at trial, Mr. Sandt did not recall a specific gang moniker which appeared on the piece of paper to which he affixed his signature. Mr. Sandt identified Mr. Aguilar from a photographic lineup. But, as always, Mr. Sandt utilized Mr Aguilar's gang moniker. Mr. Sandt also identified Mr. Reyes as the person using a specific gang moniker ...